MYERS v. Henry Henriquez, Defendant-Appellant. (2007)

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered July 25, 2006, which granted the motion of defendants Crestwood Metals Corp.   (Crestwood) and Donald McLean for summary judgment dismissing the complaint and the cross claims of defendant Henry Henriquez as against them, unanimously reversed, on the law, without costs, the motion denied and the complaint and cross claims reinstated as against Crestwood and McLean.

Crestwood and McLean failed to make a prima facie showing of entitlement to judgment as a matter of law.   In support of their motion they submitted, among other things, the deposition testimony of plaintiff and McLean.   Plaintiff testified that the accident occurred because McLean, who was operating Crestwood's tractor trailer, abruptly cut in front of the livery car in which plaintiff was a passenger.   McLean testified that the accident occurred when the livery car struck the rear of the tractor trailer, which McLean had brought to a stop approximately two minutes before the accident.   These competing versions of the accident demonstrate the existence of material issues of fact precluding summary judgment in favor of the moving defendants (see Matos v. Scoppetta, 6 A.D.3d 329, 775 N.Y.S.2d 144 [2004];  Lebron v. IESI N.Y. Corp., 6 A.D.3d 215, 774 N.Y.S.2d 321 [2004] ).